Stay Informed

Michael Boos

In reading through the amicus briefs submittedby anti-gaygroups to the Supreme Court, we’ve been generally impressed by the relative restraint of their legal arguments compared to their day-to-day anti-gay tirades. But not so with the two briefs submitted last week by a hodgepodge coalition of conservative groups.

So I guess we shouldn’t be surprised that the filings contain passages like this one, in the Prop 8 brief, arguing that laws against homosexuality affirm rather than deny the humanity of gay people:

Second, while the discrimination against Blacks in America denied them their rightful status as a member of the human race vis-à-vis their white counterparts, the discrimination against homosexuals affirmed their status as full and equal members of the human race. Indeed, the very definition of the “crime against nature,” was employed to emphasize that the sexual behavior condemned was contrary to the law of human nature. Homosexual behavior, then, while unnatural did not mean that those guilty of it were any less human.

Or this one from the DOMA brief arguing that gays and lesbians have not historically faced discrimination because some criminal sodomy laws also “extended to opposite sex unnatural couplings”:

As a class, homosexuals have not been discriminated against in the way that the court of appeals has so “easily” assumed. The appellate panel below concluded that “the most telling proof of animus and discrimination is that, for many years and in many states, homosexual conduct was criminal.” Yet historically, even the crime of sodomy was not so targeted. Rather, it was defined as “carnal copulation against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with a beast.” Thus, the crime of sodomy was “known in the common law by the convertible and equivalent name [] of ‘crime against nature,” the offense not only extended to opposite sex unnatural couplings, but was one of several sexual offenses that fit under the broad category of “offenses against the public health, safety, comfort and morals.” Among these sexual offenses were bigamy, adultery, fornication, lewdness and illicit cohabitation, incest, miscegenation, and seduction, all of which could be committed by persons of the opposite sex. Rather than a narrow negative purpose, these laws reflect a perceived concern for the public health, safety, comfort, and morals of certain sexual behaviors.

Or that the groups oh-so-cleverly invoke the court’s Obamacare decision to argue that the extra taxes same-sex spouses pay under DOMA are an acceptable way of “deterring certain activities”:

Additionally, this Court has consistently ruled that Congress’s power to tax is not limited to the purpose of raising revenue. Thus, this Court found that it is permissible for Congress to adopt a taxing policy for the purpose of deterring certain activities by the levying of a tax on them, as well as for the purpose of collecting revenue. Therefore, according to precedent, it is a constitutionally permissible exercise of Congress to adopt a tax policy for the purpose of nurturing traditional marriage as the ideal family structure for raising children, just as this Court has recently observed, that it is perfectly permissible for Congress to impose a tax “to encourage people to quit smoking” or “to shape decisions about whether to buy health insurance.”…It is not for the courts to second-guess whether Congress should promote a traditional family policy in the exercise of its taxing powers.

But what is truly remarkable about the Citizens United coalition’s legal arguments is their eagerness to burn all bridges and declare everything they come across unconstitutional. While the Family Research Council and Liberty Counsel, presumably trying to appeal to Justice Anthony Kennedy, hold their noses and accept Kennedy’s pro-gay rights opinions in Lawrence v. Texas and Romer v. Evans as law, Citizens United et al have no such scruples. Not only should Lawrence and Romer be overturned, this group argues, but so should Bolling v. Sharpe, the 1954 Brown v. Board companion case that desegregated the District of Columbia’s public schools. Bolling was the first decision in which the Supreme Court explicitly found an equal protection component in the Fifth Amendment’s Due Process Clause, thus setting the stage for six decades of prohibitions on discrimination by the federal government – all of which the coalition would like to see go.

But these groups don’t just go after decades of legal precedent. They also personally attack two judges who ruled against Prop 8 before it reached the Supreme Court, in particular district court judge Vaughn Walker, who is openly gay:

With the understanding of Judge Walker’s personal interest in the outcome of the case, it becomes much easier to understand his finding every fact for the plaintiffs and his willingness to impute ill will to the proponents of Proposition 8. For example, having in his personal life rejected 6,000 years of moral and religious teaching, we can see how Judge Walker could readily determine that California voters were motivated solely by “moral and religious views…that same-sex couples are different from opposite-sex couples [and] these interests do not provide a rational basis for supporting Proposition 8.” The same is true for Judge Walker’s conclusion that supporters’ motivations were: “fear,” “unarticulated dislike,” not “rational,” based on “animus toward gays and lesbians,” “irrational,” “without reason,” and “born of animus.” Petitioners were entitled to have their case heard by an impartial judge – not one who was leading a secret life engaging in behaviors which he appeared to believe were being unfairly judged and criticized by the proponents of Proposition 8.